Each divorce case can present its own unique challenges and issues depending on the dynamics of the case and property to be divided, but when one party is in the military or is a veteran, these cases can present a whole set of issues unique to military service. These include:
- Colorado considers the marital portion of military retirement a marital asset to be divided between the parties.
- The Court will typically divide the length of time in the military (in months) by the length of the marriage. This amount is the marital portion of the retirement. The spouse’s share is 50% of this marital portion.
- For example, if a servicemember is in the military for 20 years and married for 10, 50% of the military retirement amount is martial property and the spouse is entitled to 50% of that amount or 25% of the entire military retirement amount.
- However, it is important to note that a divorced spouse is not allowed to receive a marital portion based on increased income that occurred after the divorce
- If a party has a TSP, it will be treated like a retirement account, similar to an IRA or 401k, for the purposes of dividing property.
- Any amount that a party had before the marriage should be considered separate property while any amount acquired after the marriage should be considered marital property.
- In addition, even if the TSP, or any portion of the TSP, was owned prior to the marriage, the amount that it has increased in value during the marriage will be counted as marital property.
- Each branch of the military has regulations in place addressing a member’s obligation to provide family support if the service member’s family is not living in the same household.
- However, Colorado has a statutory formula to determine child support and spousal maintenance that is different, and often results in a higher amount than the mandatory family support amount.
Service Members’ Civil Relief Act (SCRA):
- The purpose of SCRA is to protect active duty servicemembers from being at a disadvantage in a case simply because they are on active duty.
- Active duty servicemembers can request a stay of court proceedings for 90 days.
- The stay must be requested in writing.
- After 90 days, this stay may be extended if the judge or magistrate approves.
- The purpose is to allow the proceedings to be delayed until the active duty servicemember is able to be present for the hearing.